1. These appeals by special leave arise from the judgment
of the High Court of Bombay dated April 7, 1977 by which LPA
15/77 was
dismissed in limine. The facts lie in a short
compass for deciding the question of law arising in these
appeals. On August
2, 1955, a preliminary decree in
Spl.Civil Suit No.296/49 was passed declaring that
Chandrakant-first respondent was
entitled to 1/6th share and
the appellants were entitled to 5/6th share in the suit
properties. An order was made on April
19, 1958 directing
preparation of a final decree. On December 19, 1960, first
respondent supplied non-judicial stamps to engross
and sign
the final decree to the extent of his 1/6th share. On
January 11, 1961, a final decree, in that behalf, was
engrossed on the stamped paper and signed by the trial
court. Since the appellants had not supplied the non-
judicial stamps,
no final decree was made qua them. On the
other hand, Darkhast No.41/63 was filed by them for
execution of the preliminary
decree which was subsequently
dismissed as withdrawn. Darkhast No. 70 was filed in 1965
which was dismissed on March 13, 1968 as
the application was
barred by limitation. In First Appeal No.605/68, the High
Court held that "in view of the fact that no final
decree
was passed on non-judicial stamps, there was no decree in
existence for its execution". Therefore, on August 12,
1975, the appeal was dismissed. On August 14, 1975, the
appellants filed Misc.Application No.538/ 75 before the
trial
court to accept the nonjudicial stamps and to pass a
final decree. The said application was contested by the
respondent pleading
bar of limitation. The trial court
overruled the objection and allowed the application on
3.2.76 holding that the application
was not barred by
limitation. In First Appeal No.229/76, Learned Single Judge
of the High Court held that the limitation began
to run from
the date when the direction was given to pass final decree.

Since the application was filed after the expiry of period
of limitation counted from that date, the Court held on
March 7,
1977 that it was barred by limitation. As stated
earlier, on further appeal, the division bench dismissed the
appeal in limine.

2. The crucial question for consideration is as to when
the limitation begins to run for filing an application to
pass final
decree on stamped papers. There is no direct
decision of this court on this point. Therefore, after
hearing counsel at
length, we reserved the judgment in the
appeal and independently made detailed examination. There
is divergence of opinion
in the High Courts on this
question.

3. Order 20 Rule 7 of CPC envisages that the decree "shall
bear the day on which the judgment was pronounced, and, when
the judge
has satisfied himself that the decree has been
drawn up in accordance with the judgment, he shall sign the
decree". Section 2(2)
of CPC defines "decree" to mean "the
formal expression of an adjudication which, so far as
regards the Court expressing it,
conclusively determines the
rights of the parties with regard to all or any of the
matters in controversy in the suit and
may be either
preliminary or final". A preliminary decree is one which
declares the rights and liabilities of the parties
leaving
the actual result to be worked out in further proceedings.

Then, as a result of the further inquiries conducted pur-
suant to the preliminary decree, the rights of the parties
are fully
determined and a
189
decree is passed in accordance with such determination which
is final. Both the decrees are in the same
suit. Final
decree may be said to become final in two ways: (i) when the
time for appeal has expired without any appeal being
filed
against the preliminary decree or the matter has been
decided by the highest court; (ii) when, as regards the
court
passing the decree, the same stands completely
disposed of It is in the latter sense the word "decree" is
used in, s.2(2)
of CPC. The appealability of the decree
will, therefore, not affect its character as a final decree.

The final decree merely carries into fulfillment the pre-
liminary decree.

4. Order 20 Rule 18 envisages passing of a decree for
partition of property or for separate possession of a share
therein.
Sub-r. (2) is material which provides that "if and
in so far as such decree relates to any other immovable
property or to
movable property, the Court may, if the
partition or separation cannot be conveniently made without
further inquiry, pass
a preliminary decree declaring the
rights of the several parties interested in the property and
giving such further directions
as may be required".

(Emphasis ours) Thus, it could be seen that where the decree
relates to any immovable property and the partition or
separation
cannot be conveniently made without further
inquiry, then the court is required to pass a preliminary
decree declaring the
rights of several parties interested in
the property. The court is also empowered to give such
further directions as may be
required in this behalf A
preliminary decree in a partition action, is a step in the
suit which continues until the" final decree
is passed. In
a suit for partition by a coparcenar or cosharer, the court
should not give a decree only for the plaintiffs share,
it
should consider shares of all the heirs after making them
parties and then to pass a preliminary decree. The words
"declaring
the rights of the several parties interested in
the property" in sub-rule(2) would indicate that shares of
the parties, other
than the plaintiff(s), have to be taken
into account while passing preliminary decree. Therefore,
preliminary decree for partition
is only a declaration of
the rights of the parties and the shares they have in the
joint family or coparcenary property, which
is the subject-
matter of the suit. The final decree should specify the
division by metes and bounds and it needs to be engrossed
on
stamped paper.

5. The preliminary decree, in these appeals declared that
the properties belong to the joint family of the plaintiffs
and defendant
No. 1 set out in Schedules 'A' and 'B'. The
details of the properties have been enumerated and they are
liable to partition as
per the right of the parties
mentioned in the preliminary decree. In other words,
Chandrakant has 1/6th share and the
appellants have 5/6th
share. The former is directed to pay certain sum towards
marriage expenses of his sisters with a charge
on the
property allotted to his share. He is also entitled to
mesne profits from the date of the institution of the suit
in respect of certain properties specified in para 7 of the
preliminary decree. A Commissioner was directed to be
appointed
to partition the properties mentioned in paragraph
8 of the decree. Para 9 declares certain charges in respect
of specified properties.
It would, thus, he seen that
except declaration of the rights of the parties and the
charge on the shares, there is no
final decree. The
partition is to be effected by the Commissioner to be
appointed and as per
190
directions from the court
in that behalf A preliminary
decree in respect of 1/6th share of the first respondent was
engrossed on the stamped papers submitted
by him. The
question is whether the decree then became final and the
rights of the parties stood crystallised, as envisaged
under
s.2(2) of CPC and, if so, when the limitation would begin to
run for execution thereof?
6.It is seen that the single Judge
of the High Court held
that the limitation began to run from the date when the
direction was given by the civil court to pass
the final
decree and since the application was not made by the
appellants within three years from that date, the
application for execution stood barred. The single Judge
concluded thus
"I, therefore, hold that limitation for ex-
ecuting a final decree in a suit for partition
starts on the date on which the final decree
is passed, that
is, on the date on which the
judgment directing the final decree to be
drawn is given and not from any subsequent
date on which the party supplies the non-
judicial stamp for engrossing the final decree
and when the Court
engrosses the final decree
on the stamp and signs it. "

7. Question is whether the aforesaid view is correct?
Since the decree is one which is prior to the LimitationAct, 1963, we are to look to the provisions contained in the
Limitation Act, 1908, (for short, 'the old Act'), for
deciding the controversy.
Article 182 of the First Schedule
to the old Act envisages that "for the execution of a decree
or order of any civil court not provided
for by Article 183
or by Section 48 of CPC, the period of limitation of three
years begins to run from the date the final order
was passed
on an application made in accordance with law to the proper
court for execution, or to take some step in aid
of
execution of the decree or order. Explanation 1 provides
that "where the decree or order has been passed severally in
favour
of more persons than one, distinguishing portions of
the subject-matter as payable or deliverable to each, the
application mentioned
in note 5 of the article shall take
effect in favour only of such of the said persons or their
representatives as it may be made
by. But where the decree
or order has been passed jointly in favour of more persons
than one, such application, if made by any
one or more of
them, or by his or their representatives, shall take effect
in favour of them all." Therefore, it would be clear
that
where decree or order has been passed jointly against more
persons than one, the application shall take effect against
them
all, even if it is made by one or more. It is seen
that the preliminary decree is a declaration of the rights
of the parties
with a charge on the properties to be
allotted and a Commissioner is required to be appointed for
partition of certain specified
properties. Therefore, as
envisaged in sub-r. (2) of Rule 18 of Order 20, it was only
a preliminary decree declaring the rights
of the parties
with power to the court to give further directions in that
behalf It is settled law that more than one final decree
can
be passed. With the passing of the final decree in respect
of the share of the first respondent, the rights of the
parties
in respect of other properties have not been
crystallised and no final decree dividing the properties by
metes and bounds
was passed nor any application was made to
divide the properties in term's of the shares of the parties
declared in the preliminary
decree.

191

8. It has been seen that after passing of preliminary
decree for partition, the decree cannot be made effective
without a
final decree. The final decree made in favour of
the first respondent is only partial to the extent of his
1/6th right without
any demarcation or division of the
properties. Until the rights in the final decree
proceedings are worked out qua
all and till a final decree
in that behalf is made, there is no formal expression of the
adjudication conclusively determining
the rights of the
parties with regard to the properties for partition in terms
of the declaration of 1/6th and 5/6th shares of
the first
respondent and the appellants so as to entitle the party to
make an application for execution of the final decree.

9. In Rameshwar Singh-Decree holder v. Homeswar Singh-
Judgment-debtor, AIR 1921 Privy Council 3 1, the facts, in
nutshell,
were: There was a joint liability for the payment
of some amount under a grant. A decree in that behalf was
passed and the property
was sought to be proceeded against
the, estate for execution. The contention was that since a
decree was made earlier which was
executable but no appli-
cation was made within limitation, the decree became
unexecutable, being barred by limitation. That
was accepted
by the High Court. On appeal, the Judicial Committee held
that "in order to make the provisions of the Limitation
Act
apply, the decree sought to be enforced must have been in
such a form as to render it capable in the circumstances of
being
enforced". The decree being limited in its scope, it
was held that limitation did not begin to run from the date
of decree as
drawn. The contention of Smt.Jaishree Wad,
learned council for the respondent, is that the Privy
Council upheld the principle
of making an application within
three years from the date when the right to apply accrues,
as provided in Article 181 of the old
Limitation Act, the
ratio of the aforesaid case applies to the facts in this
case since the application had not been made
within three
years or within 12 years and so, it was hopelessly barred by
limitation. She placed reliance on the judgment of
this
Court in Yeshwant v. Walchand, AIR 1951 SC 17 also, and on
judgments in Maksudan Prasad v. Smt. Lakshmi Devi, AIR 1983
Patna
105, Pandivi Satyanandam v P. Nammayya AIR 1938 Madras
307, and Basamma v. Shivamma, AIR 1963 Mysore 323.

10. As found earlier, no executable final decree has been
drawn working out the rights of the parties dividing the
properties
in terms of the shares declared in the pre-
liminary decree. The preliminary decree had only declared
the shares of the parties
and properties were liable to be
partitioned in accordance with those shares by a Com-
missioner to be appointed in this
behalf Admittedly, no
Commissioner was appointed and no final decree had been
passed relating to all.

11. In Yashwant's case (supra), the facts were that
preliminary decree for accounting was passed in a suit for
rendition
of account of partnership. There was deficit
court fee payable. It was contended that until the payment
of deficit court fee
was made, right had not been accrued to
draw the final decree and that therefore, limitation begins
to run only from the date of
paying the deficit court fee.

This court negatived the contention and held that the
preliminary decree was not a conditional decree and its
enforceability
was not dependent upon the future act namely
pay-
192
ment of the deficit court fee; and payment thereof at a
later date would
not provide fresh limitation to run from
that date.

12. As to Maksudan's case (supra), we state that it had not
been correctly decided. Limitation does not begin to run
from the
date when direction is given to pass final decree.

Mere giving of direction to supply stamped paper for passing
final decree does not amount to passing a final decree.

Until the final decree determining the rights of the parties
by metes and bound is drawn up and engrossed on stamped
paper(s)
supplied by the parties, there is no executable
decree. In this behalf, it is necessary to note that s.2(a)
of the Bombay Stamp
Act, 1958, as amended by the local Act,
provides that a decree of civil. court is required to be
stamped as per Article 46 in
Schedule-1. Section 34 thereof
lays down that "no instrument chargeable with duty shall be
admitted in evidence for any purpose
by any person having by
law or consent of parties authority to receive evidence, or
shall be acted upon, registered or authenticated
by any such
person or by any public officer unless such instrument is
duly stamped". Therefore, executing court cannot receive
the preliminary decree unless final decree is passed as
envisaged under Order 20 Rule 18(2). After final decree is
passed
and a direction is issued to pay stamped papers for
engrossing final decree thereon and the same is duly
engrossed on stamped
paper(s), it becomes executable or
becomes an instrument duly stamped. Thus, condition
precedent is to draw up a final
decree and then to engross
it on stamped paper(s) of required value. These two acts
together constitute final decree, crystallizing
the rights
of the parties in terms of the preliminary decree. Till
then, there is no executable decree as envisaged in Order
20
Rule 18(2), attracting residuary Article 182 of the old
Limitation Act. Contrary views of the High Courts, are not
good
law. A Division Bench of the Andhra Pradesh High Court
in Smt. Kotipalli Mahalakshmamma v. K. Ganeswara Rao, AIR
1960 AP 54,
correctly decided the question of law which held
that the limitation begins to run only after a final decree
is engrossed on stamped
papers.

13. Accordingly, the appeals arc allowed. The judgments
and orders of the High Court arc set aside and that of the
trial court
stands confirmed. The trial court is directed
first to pass the final decree and then to engross the same
on the stamped papers
already supplied by the appellants; if
further stamped papers be needed, reasonable time would be
given to supply the same. The
final decree would then be
drawn thereon. The court would, thereafter, proceed with
the execution of the final decree in accordance
with law.

14. In the circumstances, the parties am directed to bear
their own costs throughout.

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